Property dispute
Hiten Jain
(Querist) 26 July 2012
This query is : Resolved
My grandmother is having flat in Mumbai but she has expired and now no one stays in that flat and my Grandfather has also expired.First the property was in the name of my Grandfather and after his death the property was transfered on my Grandmother name. After getting Share certificate from Society in her name she expired within 6 month from the date of getting Share Certificate without making any nomination. Actually She stays in her native Place at Rajasthan and has given this flat on rent to earn an income for her survival.No one cares for her except my mother. My Grandmother was having a cancer and my mother was not aware of it, she came to know after her death. A day before her death when she was serious and someone informed his Son(who wants a property) without informing us, rushed to rajasthan and forced my Grandmother to sign on a 'WILL' made on plain paper else he will not take her to Hospital for Treatment, which is nothing but an UNDUE INFLUENCE case. My GM signed on the 'WILL' which she don't want to do and which is not correct compare to her actual signature ( the sign was like kap kap ke sign kar raha ho), she was not in a Sound Mind at that time.The flat is vacant since 4 to 5 years and the outstanding Maintenance charges has reached to Rs.50000/-. My grandmother has 3 daughter and 2 sons.Only 1 son and 1 daughter(my mother) wants share in this property.But the son says he want 4 shares and will give only 1 share to his sister. He approached a High court for a Probate and the suit is dismissed by High Court Judge. He already has a Shop in high Society in Mumbai which he has taken for running his business after my Grandfather death. The Shop is still on my Grandfather name.
1.Now what should be the procedure?
2.Can a society sell this flat for clearing the outstanding maintenance charges ?
3.What are the Rights we are having on this Property?
4.What should we do to get a share in this property?
Please give me some advice. Waiting for your opinion.
ajay sethi
(Expert) 26 July 2012
1) what was reasons for dismissal of probate application ?
2) apply for succession certifcate .
3) society will obatin recovery certifcate under section 101 of MCS act to recover the dues .
4) need to see complete case papers to advise .
Hiten Jain
(Querist) 27 July 2012
The Court has passed the following Order:
1. Advocate for the defendant(My Mother) is present. The plaintiff and his advocate are absent when called.
2. The suit is dismissed under Order IX Rule 8 of the Code of Civil Procedure.
This order has passed on 15/09/2011.
prabhakar singh
(Expert) 27 July 2012
The Will case is finished by it's dismissal on 15/09/2011.
A suit dismissed under order IX rule 8 can be restored if party aggrieved files petition of restoration with in 30 days from the date of dismissal and now it has become time barred.Although any such delay can be condoned by the court under section 5 of the limitation Act if reasonable grounds for delay are shown.On face it is too late unless your opposite side plaintiff has some strong reason which prevented him from filing the restoration.
In absence of a valid WILL your grand mother died intestate living behind 3 daughters and 2 sons who all 5 shall legally inherit the property so left by your grand mother.Hence your mother can inherit only 1/5 th.Those(1son and other 2 daughters) who are not interested can relinquish their share in favor of a sharer of their choice,who may be your mother or her contesting brother by a registered relinquishment (QUIT CLAIM)deed.
Your mother should apply for succession certificate in Mumbai high court in respect of the shares owned by your grandmother where after mutation shall take place in all 5 names.then a partition of property
can be sought amicably or by suit.
The society can not out right auction the flat for its' dues,society will have to obatin recovery certifcate under section 101 of MCS act to recover the dues as told by Mr.sethi.
Hiten Jain
(Querist) 27 July 2012
1. My Mother alone should apply for succession certificate to get the flat in the name of the legal hiers and all the court and legal fees should be bear by my mother alone for that?
2.Is it proper if my mother and her brothers & sisters together make an application to Society to transfer the Flat in the name of legal heirs ? or my mother should apply for succession certificate ?
prabhakar singh
(Expert) 27 July 2012
If Society does not insist for a succession certificate,application can be moved directly and jointly to the society.
